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comparative analysis will be divided in the following three parts: I. Matters regulated by the Hague-Visby Rules, the Hamburg Rules and the Rotterdam Rules II. Matters regulated by the Hamburg Rules and the Rotterdam Rules III. Matters regulated only by the Rotterdam Rules I. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Matters regulated by the Hague-Visby Rules, the Hamburg Rules and the Rotterdam Rules 2 3 4 5 6 8 13 14 16 18 24 32 36 38
Definition of contract of carriage......................................................... Page Geographical Scope of application ........................................................ Exclusions from the scope of application................................................ Period of application and period of responsibility of the carrier ............ Obligations of the carrier....................................................................... Liability of the carrier and allocation of the burden of proof.................. Liability of the carrier for other persons ................................................ Liability of servants, agents and independent contractors ...................... Notice of loss, damage or delay.............................................................. Obligations and liability of the shipper .................................................. Contract documents ............................................................................... Limitation of liability ............................................................................. Time for suit........................................................................................... Freedom of contract............................................................................... II. Matters regulated by the Hamburg Rules and the Rotterdam Rules
1. 2. 3. 4. 5.
Deck cargo ............................................................................................ Live animals .......................................................................................... Obligations and liability of the actual carrier/maritime performing parties Jurisdiction ............................................................................................ Arbitration ............................................................................................. III. Matters regulated only by the Rotterdam Rules
43 44 45 46 49
1. 2. 3. 4. 5. 6.
*
Carriage beyond the sea leg................................................................... Electronic records.................................................................................. Obligations and liabilities of maritime performing parties ..................... Delivery of the goods ............................................................................. Rights of the controlling party................................................................ Transfer of rights ...................................................................................
52 57 58 60 63 65
Paper delivered at the General Assembly of the AMD, Marrakesh 5-6 November 2009.
Matters regulated by the Hague-Visby Rules, the Hamburg Rules and the Rotterdam Rules 2 3 4 5 6 8 13 14 16 18 24 32 36 38
Definition of contract of carriage ......................................................... Page Geographical Scope of application......................................................... Exclusions from the scope of application ............................................... Period of application and period of responsibility of the carrier.............. Obligations of the carrier ....................................................................... Liability of the carrier and allocation of the burden of proof................... Liability of the carrier for other persons ................................................. Liability of servants, agents and independent contractors ....................... Notice of loss, damage or delay.............................................................. Obligations and liability of the shipper................................................... Contract documents ............................................................................... Limitation of liability............................................................................. Time for suit .......................................................................................... Freedom of contract ............................................................................... Definition of contract of carriage
Normally a contract is defined on the basis of the obligations of the parties. The HagueVisby Rules do not contain any such definition, but merely connect the notion of contract of carriage to the document issued thereunder, the bill of lading. For that reason it has been said that they have adopted a documentary approach. In the Hamburg Rules and in the Rotterdam Rules there is instead a definition of the contract of carriage but it differs in respect of the description of the obligation of the carrier which is merely the carriage of goods by sea from one port to another in the Hamburg Rules and the carriage of goods from one place to another in the Rotterdam Rules. The Hamburg Rules expressly exclude their application to the carriage by modes other than sea in case the contract involves the carriage by other modes, while the Rotterdam Rules extend their application to the carriage by other modes if the parties have so agreed.
HAGUE-VISBY RULES Article 1 In these Rules the following words are employed, with the meanings set out below: ... ... ... ... ... ... ... ... ... (b) Contract of carriage applies only to contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by sea, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter party from the moment at which HAMBURG RULES Article 1. Definitions In this Convention: ... ... ... ... ... ... ... ... ... 6. Contract of carriage by sea means any contract whereby the carrier undertakes against payment of freight to carry goods by sea from one port to another; however, a contract which involves carriage by sea and also carriage by some other means is deemed to be a contract of carriage by sea for the purposes of this Convention only in so far as it relates to the carriage by sea. ROTTERDAM RULES Article 1. Definitions For the purposes of this Convention: 1. Contract of carriage means a contract in which a carrier, against the payment of freight, undertakes to carry goods from one place to another. The contract shall provide for carriage by sea and may provide for carriage by other modes of transport in addition to the sea carriage.
such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same.
2.
Under all Conventions the carriage must be international and must be linked to a contracting State. But while in the Hague-Visby Rules it is required for their application that either the bill of lading or the port of loading be located in a contracting State, in the Hamburg Rules the place of issuance of the bill of lading is rightly ignored because it may not be connected at all with the voyage, but reference is made to both the port of loading and to the port of discharge. Therefore the Hague-Visby Rules do not apply to a contract from a port located in a non-contracting State to a port of discharge located in a contracting State, while the Hamburg Rules do apply. In addition they both apply when they or a national law giving effect to them are incorporated in the bill of lading. Under the Rotterdam Rules the geographical connecting factors are instead the places of receipt and of delivery and the ports of loading and of discharge, the first two connecting factors having been added because the Rules apply also to door-to-door contracts under which receipt and delivery may be inland. No reference is instead made, as in the Hamburg Rules, to the place of issuance of the bill of lading (or other transport document) for the reasons previously indicated. Nor has a reference been made to the incorporation of the Rules in the transport document because the effect of such incorporation may be different in the various jurisdictions. Furthermore, the reference in both the Hague-Visby Rules and the Hamburg Rules to a national law giving effect to them may be the cause of significant uncertainty and of lack of uniformity, because national laws may give effect to them with variations.
HAGUE-VISBY RULES Article 10 The provisions of these Rules shall apply to every bill of lading relating to the carriage of goods between ports in two different States if: (a) the bill of lading is issued in a contracting State, or (b) the carriage is from a port in a contracting State, or (c) the contract contained in or evidenced by the bill of lading provides that these Rules or legislation of any State giving effect to them are to govern the contract; whatever may be the nationality of the ship, the carrier, the shipper, the consignee, or any other interested person. Each Contracting State shall apply the provisions of this Convention to the Bills of HAMBURG RULES Article 2. Scope of application 1. The provisions of this Convention are applicable to all contracts of carriage by sea between two different States, if: (a) the port of loading as provided for in the contract of carriage by sea is located in a Contracting State, or (b) the port of discharge as provided for in the contract of carriage by sea is located in a Contracting State, or (c) one of the optional ports of discharge provided for in the contract of carriage by sea is the actual port of discharge and such port is located in a Contracting State, or (d) the bill of lading or other document evidencing the contract of carriage by sea is issued in a Contracting State, or ROTTERDAM RULES Article 5. General scope of application 1. Subject to article 6, this Convention applies to contracts of carriage in which the place of receipt and the place of delivery are in different States, and the port of loading of a sea carriage and the port of discharge of the same sea carriage are in different States, if, according to the contract of carriage, any one of the following places is located in a Contracting State: (a) The place of receipt; (b) The port of loading; (c) The place of delivery; or (d) The port of discharge. ... ... ... ... ... ... ... ... ...
Lading mentioned above. This Article shall not prevent a Contracting State from applying the rules of this Convention to Bills of Lading not included in the preceding paragraphs.
(e) the bill of lading or other document evidencing the contract of carriage by sea provides that the provisions of this Convention or the legislation of any State giving effect to them are to govern the contract.
3.
Exclusions
The Hague-Visby Rules, pursuant to article 1(b), apply only to contracts of carriage covered by a bill of lading or similar document of title and therefore they impliedly exclude charter parties. This provision gives rise to some uncertainty, for article 3(3) provides that the carrier must issue a bill of lading on demand of the shipper and article 6 grants the carrier freedom of contract when no bill of lading is issued. Therefore the Rules apply also before a bill of lading is issued. The Hamburg Rules provide for their application to contracts of carriage by sea, thereby adopting a contractual approach, but then state that they do not apply to charter parties, thereby using a documentary approach in order to exclude from their scope of application contracts for which the basic document is the charter party. Also in the Rotterdam Rules the basic approach is contractual. But that approach is supplemented by a combination of a type of trade and a documentary approach: art. 6 sets out cases where in liner transportation the Rules do not apply, such cases being identified by reference to documents (charterparties and other contractual arrangements) and then cases where in non-liner transportation the Rules instead do apply: it appears, therefore, that such provisions imply that as a general rule the Rules apply to liner transport, in respect of which the contract is contained in or evidenced by a transport document, and do not apply to non-liner transport in respect of which normally the contract is evidenced by a charterparty. The most significant feature of the provisions on the scope of application is the protection granted to third parties: under the Hague-Visby and the Hamburg Rules such protection is granted only if a bill of lading is issued and is endorsed to a third party; under the Rotterdam Rules instead in all situations excluded from their scope of application the Rules nevertheless apply in respect of parties other than the original contracting party, irrespective of a negotiable transport document (such as a bill of lading) or a negotiable electronic transport record being issued or not, as well as irrespective of any document being issued or not.
HAGUE-VISBY RULES Article 1 In these Rules the following words are employed, with the meanings set out below: ... ... ... ... ... ... ... ... ... (b) Contract of carriage applies only to contracts of carriage covered by a bill of HAMBURG RULES Article 2. Scope of application 3. The provisions of this Convention are not applicable to charter-parties. However, where a bill of lading is issued pursuant to a charter-party, the provisions of the Convention apply to such a bill of lading if ROTTERDAM RULES Article 6. Specific exclusions 1. This Convention does not apply to the following contracts in liner transportation: (a) Charter parties; and (b) Other contracts for the use of a ship or of any space thereon.
lading or any similar document of title, in so far as such document relates to the carriage of goods by sea, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same. (c) Goods includes goods, wares, merchandise, and articles of every kind whatsoever except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried. ... ... ... ... ... ... ... ... ...
it governs the relation between the carrier and the holder of the bill of lading, not being the charterer.
2. This Convention does not apply to contracts of carriage in non-liner transportation except when: (a) There is no charter party or other contract between the parties for the use of a ship or of any space thereon; and (b) A transport document or an electronic transport record is issued. Article 7. Application to certain parties Notwithstanding article 6, this Convention applies as between the carrier and the consignee, controlling party or holder that is not an original party to the charter party or other contract of carriage excluded from the application of this Convention. However, this Convention does not apply as between the original parties to a contract of carriage excluded pursuant to article 6.
4.
On the basis of the (indeed not very clear) definition of carriage of goods in article 1(e) of the Hague-Visby Rules, it is now settled that the period of their application is, for dry cargo, from the beginning of loading of the goods on the ship to the completion of their discharge from the ship. Therefore, since very frequently this is always the case in the liner trade the carrier takes the goods in charge before their loading on board and delivers them to the consignee in a warehouse of the port of discharge, there are periods when the goods are in the custody of the carrier to which the Hague-Visby Rules do not apply. That creates uncertainty, because the rules applicable may vary from port to port. Such uncertainty is cured by the Hamburg Rules, for they provide that their period of application (as well as the period of responsibility of the carrier under the Convention) is that during which the carrier is in charge of the goods at the port of loading, during the carriage and at the port of discharge. Therefore, in a port-to-port contract the Rules normally apply to the whole period during which the carrier is in charge of the goods. But this is not the case in a door-to-door contract or when the terminals of the carrier are outside the port area, because the rules applicable would be different, nor are there in the Hamburg Rules provisions on the allocation of the burden of proof as to the conditions of the goods when they arrive to the port of loading and when they leave the port of discharge. Under the Rotterdam Rules the period of application and the period of responsibility of the carrier coincide with that during which the carrier is in charge of the goods, wherever he receives and delivers them, except where the goods must be handed over to
an authority in the place of receipt or in the place of delivery (an exception that would apply, it is thought, only in port-to-port contracts).
HAGUE-VISBY RULES Article 1 (e) Carriage of goods covers the period from the time when the goods are loaded on to the time they are discharged from the ship. HAMBURG RULES Article 4. Period of responsibility 1. The responsibility of the carrier for the goods under this Convention covers the period during which the carrier is in charge of the goods at the port of loading, during the carriage and at the port of discharge. ROTTERDAM RULES Article 12 Period of responsibility of the carrier 1. The period of responsibility of the carrier for the goods under this Convention begins when the carrier or a performing party receives the goods for carriage and ends when the goods are delivered.
5.
The original nature of the Hague Rules as standard bills of lading clauses may explain why the basic obligation of the carrier, viz. to deliver the goods to the consignee, is not mentioned. Nor is it mentioned and this is surprising in the Hamburg Rules, even though it is implied in its article 5(1). Such obligation is instead set out in article 11 of the Rotterdam Rules. Provisions are made in the Hague-Visby Rules regarding the obligations of the carrier to make the ship seaworthy and to care for the cargo, while no reference to them is made in the Hamburg Rules, since it has been deemed sufficient to provide in article 5(1) that the carrier is liable unless he proves that he and his servants or agents took all measures that could reasonably be required to avoid the occurrence and its consequences. The traditional obligations of the carrier to exercise due diligence to make the ship seaworthy and to care for the goods have been preserved in the Rotterdam Rules but the first of such obligations has been made continuous (the second was already so). There is in fact no reason why, once the ship has sailed from a port, the owner should be relieved from any duty to ensure its seaworthiness1. He may not, of course, take the same kind of actions as when the ship is in a port, but nevertheless the actions that are possible must be taken. This is at present already required by the provisions of the ISM Code. As regards transport documents, in both the Hague-Visby Rules and the Hamburg Rules it is provided that the carrier must issue a bill of lading but then in the Hamburg Rules provision is also made for the case where the carrier issues a document other than a bill of lading without any indication, however, as to when the carrier may do so and as to the nature of such document.
The Harter Act by stating in section 2 that it was unlawful to insert in any bill of lading or shipping document any covenant whereby the obligation of the owner to exercise due diligence inter alia to make the vessel seaworthy and capable of performing her intended voyage impliedly restricted that obligation to the time preceding the commencement of the voyage. However both the Australian Sea-Carriage of Goods Act, 1904 and the Canadian Water-Carriage of Goods Act, 1910 provided, respectively in sections 5 (b) and 4 (b), that any covenant whereby the obligation inter alia to make and keep the vessel seaworthy is lessened or avoided would be illegal.
In the Rotterdam Rules various alternatives are set out in article 35: the carrier is bound to issue, at the shippers option, a negotiable or a non-negotiable transport document unless it is the custom, usage or practice of the trade not to use one. The only question that may arise is whether the carrier, required to issue a negotiable transport document, may issue a negotiable document that expressly states that the goods may be delivered without the surrender of the transport document: a type of document reference to which is made in article 47(2). It is thought that this is not the case, for such particular type of negotiable transport document constitutes an exception to the ordinary character of such document as a surrender document and, therefore, the carrier may not issue the document mentioned in article 47(2) unless required by, or with the consent of, the shipper.
HAGUE-VISBY RULES Article 2 Subject to the provisions of Article VI, under every contract of carriage of goods by sea the carrier, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities and entitled to the rights and immunities hereinafter set forth. Article 3 1. The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to: (a) Make the ship seaworthy; (b) Properly man, equip and supply the ship; (c) Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation. 2. Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried. ... ... ... ... ... ... ... ... ... HAMBURG RULES ROTTERDAM RULES Article 11 Carriage and delivery of the goods The carrier shall, subject to this Convention and in accordance with the terms of the contract of carriage, carry the goods to the place of destination and deliver them to the consignee. Article 13. Specific obligations 1. The carrier shall during the period of its responsibility as defined in article 12, and subject to article 26, properly and carefully receive, load, handle, stow, carry, keep, care for, unload and deliver the goods. 2. Notwithstanding paragraph 1 of this article, and without prejudice to the other provisions in chapter 4 and to chapters 5 to 7, the carrier and the shipper may agree that the loading, handling, stowing or unloading of the goods is to be performed by the shipper, the documentary shipper or the consignee. Such an agreement shall be referred to in the contract particulars. Article 14. Specific obligations applicable to the voyage by sea The carrier is bound before, at the beginning of, and during the voyage by sea to exercise due diligence to: (a) Make and keep the ship seaworthy; (b) Properly crew, equip and supply the ship and keep the ship so crewed, equipped and supplied throughout the voyage;
and (c) Make and keep the holds and all other parts of the ship in which the goods are carried, and any containers supplied by the carrier in or upon which the goods are carried, fit and safe for their reception, carriage and preservation.
6.
The first difference between the three Conventions consists in the fact that the HagueVisby Rules do not cover liability for delay while both the Hamburg Rules and the Rotterdam Rules do. As regards the basis of the liability of the carrier, although the basis is fault under all Rules, there are significant differences between them in respect of the exceptions to the general rule that fault entails liability and of the allocation of the burden of proof. Under the Hague-Visby Rules the carrier is exonerated from liability a) in respect of loss of or damage to the goods arising or resulting from unseaworthiness unless caused by the breach by the carrier of his due diligence obligation and, b) as well as for loss of or damage to the goods arising from fault of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship and for loss of or damage to the goods due to fire caused by fault of the crew. Under the Hamburg Rules and the Rotterdam Rules instead the carrier is always liable for loss, damage or delay caused by fault of the carrier, his servants or agents. There is a difference between the Hamburg Rules and the Rotterdam Rules in respect of the liability regime for live animals. Pursuant to article 5(5) of the Hamburg Rules the carrier is not liable for loss, damage or delay resulting from any special risks inherent in their carriage. Under the Rotterdam Rules instead no particular rules are provided but freedom of contract is granted by article 81(a) except where loss, damage or delay results from an act or omission done with the intent to cause such loss, damage or delay or recklessly and with knowledge that such loss, damage or delay would probably result. In so far as the allocation of the burden of proof is concerned neither the Hague-Visby Rules nor the Hamburg Rules make any reference to the initial burden a proof laying on the claimant. The Rotterdam Rules instead do and provide in article 17(1) that the carrier is liable if the claimant proves that the loss, damage or delay took place during the period of the carriers responsibility. The burden of proof then shifts on the carrier and the Hague-Visby Rules and the Rotterdam Rules differ from the Hamburg Rules: the Hague-Visby Rules and the Rotterdam Rules provide two alternatives, the first being the proof that the loss, damage or delay is not attributable to the fault of the carrier or the fault of any person for whom he is liable and the second being only a presumption of absence of fault if the carrier proves that the loss, damage or delay is
caused by an excepted peril. The Hamburg Rules instead ignore the reversal of the burden of proof alternative except for the loss, damage or delay caused by fire. The subsequent burden of proof laying on the claimant is then regulated in a more detailed manner in the Rotterdam Rules, pursuant to which the claimant may prove either that the excepted peril was caused by the fault of the carrier or of a person for whom he is liable or that an event other than an excepted peril contributed to the loss, damage or delay. The Rotterdam Rules then provide for a further alternative in favour of the claimant, consisting of the proof that the loss, damage or delay was probably caused or contributed to by unseaworthiness of the vessel, in which event the carrier may prove that he had exercised due diligence in making and keeping the vessel seaworthy. The following diagram shows the various phases of the shifting of the burden of proof:
Phase 1 (article 17(1)) Phase 2(a) (art. 17(2)) Phase 3(a) (art. 17(4)(a))
Phase 2(b) (art. 17(3)) Phase 3(b) (art. 17(4)(b)) Phase 4(a) (art. 17(4)(b))